The Supreme Court upheld the dismissal of Peter McGarry’s negligence claim against the Minister for Defence, Ireland and the Attorney General, finding that lengthy, unexplained delays and the loss of potential witnesses and records meant the case could not fairly proceed. The Court directed that counsel be heard on the Minister’s cross-appeal concerning costs; it did not decide that issue in this judgment.
McGarry claimed that, while serving in the Defence Forces, he was sent to assist with recovering bodies after the Stardust fire in Dublin on 14 February 1981. He said he later suffered post-traumatic stress disorder as a result of witnessing the victims’ remains. Those were his claims, not findings that the Court made about what happened or what caused his condition.
The High Court dismissed the claim for want of prosecution in July 2010. In its 17 February 2016 judgment, the Supreme Court considered McGarry’s appeal from that order. It described extensive delays both before and after proceedings began: the plenary summons was issued in October 1996, more than 15 years after the alleged events, and a reply to the defendants’ request for particulars was not delivered until December 2005. The Court found the delays inordinate and inexcusable, including delays after McGarry’s condition was reported to have stabilised in 2003.
The Court also considered prejudice to the defendants. State inquiries had not found records identifying Defence Forces personnel who assisted in the aftermath of the fire. A doctor who had examined McGarry and a corporal said to have supervised the temporary morgue tent had died. The Court said other potential witnesses were untraceable or could not be identified, leaving the defendants without relevant recollections or documentation to test the account at trial.
The judgment noted that the State had pleaded delay in its defence in 1999 but did not move to dismiss the claim until 2009. It nevertheless held that the primary responsibility for advancing the case rested with McGarry, particularly given the delay before proceedings were issued. Applying the principles on inordinate and inexcusable delay and fairness, the Court concluded that the prejudice was irretrievable and that a trial could not be fair. It therefore upheld the High Court’s dismissal. The costs cross-appeal remained for a separate hearing of submissions.